Driving Under The Influence

What is driving under the influence?

Unlike most drink driving offences, Driving under the influence does not involve evidence of blood or breath readings. As such, this is a charge that is often successfully defended as it relies on observations, typically of police, which are fallible and often uninformed.

The evidence usually called in these cases is the oral testimony of police officers who will certify as to the defendant’s appearance: being unsteady on his feet, eyes bloodshot or bleary, speech slurred, breath smelling strongly of intoxicating liquor and other observable characteristics exhibited by the defendant. In disputing the police evidence, it may be worthwhile obtaining your own blood test soon after being released by the police.

If you are charged with the offence of Driving under the influence, your options will normally be to plead guilty or not guilty.

Pleading not guilty

You will be found not guilty of the offence of Driving under the influence if the police cannot prove beyond reasonable doubt:

  1. You under the influence of alcohol or any other drug:
  1. Drive a vehicle; or
  2. Occupy the driving seat of a vehicle and attempt to put the vehicle in motion; or
  3. If the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in or on a motor vehicle next to a learner driver who is driving the vehicle.

Under the influence includes being affected to a slight, moderate, or substantial degree. Where a blood test has been taken, a person cannot be charged with driving under the influence.

Penalty for a first offence

For a first offence, the maximum penalty is 9 months imprisonment and/or a fine of $2,200. The automatic period of disqualification is 12 months, with a minimum of 6 months. Upon conviction, the disqualification periods will apply, unless the matter is dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act in which case you will not be disqualified from driving. To find out more about a section 10, click here.

Penalty where the offence is a second or subsequent major offence within 5 years

For a second or subsequent major offence, the maximum penalty is 12 months imprisonment and/or $3,300 fine. The automatic period of disqualification is 3 years, with a minimum of 12 months, unless the matter is dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act in which case you will not be disqualified from driving. To find out more about a section 10, click here.

Do I need references for a driving under the influence charge?

In deciding whether to deal with your matter by way of section 10, the court will consider, amongst other factors:

  • Your character (employment, family, charity)
  • Your criminal record (if any)
  • Your traffic record
  • The circumstances of you consuming alcohol
  • The circumstances of your driving
  • The deliberateness of your offending
  • Your need for a licence in particular for employment, family or medical reasons, or where you live in a remote area
  • Whether you have completed the Traffic Offenders Program

In order to obtain a section 1o, drink driving cases should be tailored to address the above factors and matters unique to your own case. In order to give you the best chance of keeping your licence, it is recommended that you work closely with one of our solicitors to prepare your case. Your criminal lawyer will request you obtain references. If the offence is one that carries a loss of licence, the referees should state your needs for a licence. Below are some reasons a court may invoke for not recording, or reducing, a disqualification period.


Loss of employment is a classic reason for a court not disqualifying a person. If a person will lose their job if they lose their licence then the referee should put forward that assertion with absolute certainty. The court will see straight through waffle such as “his position may be reviewed”. For example:

A licence disqualification will prevent Joe Blog’s from fulfilling his duties and hence, if this occurs, he will be asked to temporarily leave his post until the disqualification lapses or if the disqualification is for more than 3 months, his employment will be terminated as per clause 8.2 of his contract enclosed herein. There is no discretion in this situation. He is a sales representative and our clients cannot be serviced by public transport.

Lack of public transport

No viable alternative transport is a matter the court may consider when deciding whether to impose a disqualification. This mainly applies to people in the country, but may apply if you are a shift worker, reside or work in an area not serviced by public transport, or to females who work late. For example:

Joe Blog’s works at Marayong Chickens in an industrial area where there is no public transport. He wakes up at 3am, leaves at 4am, and starts his shift at 5am. We have explored all options and, as he is the only licenced driver in our family, he has no way to get to work if he loses his licence. We have a mortgage and two school age children. Without a licence, he cannot get to work. Worse still, we’d have no way to get to the Richmond shops, a 20 minute drive from where we live on acreage.

Family responsibilities

Family reasons such as care for a child or elderly parents, sickness of yourself or another who relies upon your ability to drive, are matters a court may consider. For example:

Joe Blogs resigned from his job to look after our sick son as he is the only licenced driver in our family who could take him to his daily medical appointments. When he stopped working, I started a lower paying job. Even though it meant less money, it was the only way we could ensure our son received the treatment he needed. Joe is with our son 24 hours a day in case his conditions worsens and he needs to be taken to hospital. We simply cannot look after our son without a car.

A detailed guide to reference writing can be viewed here.

Penalties a court in NSW can impose:

The Interlock Program 

In NSW, courts are required to make Mandatory Interlock Orders upon conviction of certain drink drive and traffic offences. If you commit one of the offences and are convicted, you will be disqualified from driving and ordered to install an interlock device in your car, motorbike or truck.

Below is a table with the relevant disqualification and interlock periods for different offences.

Offence Minimum time off the road Maximum time off the road Minimum time in interlock program
Novice Range, Special Range or Low Range (second offence) 1 months 3 months 12 months
Mid Range (second offence) 6 months 9 months 12 months
High Range 6 months 9 months 24 months
High Range (second offence) 9 months 12 months 48 months
DUI (second offence) 6 months 9 months 2 months
Refuse/fail to provide sample 6 months 9 months 24 months
Refuse/fail to provide sample (second offence) 9 months 12 months 48 months

Defences to drink driving charges

  • Disputing the Blood Alcohol reading – The offence of drink driving relates to your blood alcohol content when you drive the car, not when you are breath tested. It takes about 30 minutes for the police to arrest you and take you to the police station for a second, more accurate test. In this time it is normal for your blood alcohol level to go up or down. It follows that the reading recorded by police may not be a good representation of your blood alcohol content at the time of driving. By referring your case to a pharmacologist, we may be able to obtain evidence that although you were over the limit at the time of your breath analysis, you were not over the limit at the time you drove or, if you were, you were at a lower range than charged e.g. low range rather than mid-range.
  • Honest and reasonable mistake of fact – This defence is available but Magistrates are extremely hesitant to uphold it for public policy reasons and the reasonableness element of the offence is applied stringently. This defence states that you are not guilty of a drink driving offence if, at the time of driving, you held an honest belief that you were under the limit and it was reasonable for you to hold that belief in all of the circumstances. Examples of where this defence may be run are cases where people drive the ‘morning after’ thinking the alcohol is out of their system or where they have followed the prior RTA directive in relation to alcoholic consumption and driving (two standard drinks in the first hour and one every hour after).
  • Breath analysis not taken within two hours of driving – The police are required to prove that you had the blood alcohol concentration alleged at the time you were driving. The law requires that the breath analysis occurred within 2 hours of driving. Where police attend at the scene of an accident often they will arrive more than 2 hours since the time of the accident.
  • Home safe rule – The law prohibits the police from demanding a breath test of a driver at their home. If police breath test you at home in breach of this rule, the evidence of your reading may be inadmissible.

Why choose AC Law Group?

Our solicitors are experts at obtaining section 10 dismissals for Driving under the influence. For these offences, we offer fixed fees with no hidden extras. To read more about AC Law Group, click here, and call us or make a website inquiry today.

Case Study

Mr Correy represented a man charged with driving under the influence at Downing Centre Local Court. Expert evidence was called in favour of the Defendant that provided the opinion that the amount of THC in the blood was not enough to effect the driving. The police called an expert to similarly claim that the THC would have affected the driver. Mr Correy argued that if the Magistrate could not reject the evidence of the expert called by the defence, then there had to be doubt. The Magistrate stated she could not separate the two opinions on the material before the court and dismissed the charge.

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